Further Reading

In the case, a judge ruled in favor of a Utah couple (Jennifer and John Palmer) who had criticized the online retailer for not delivering a less-than-$20 order in December 2008. The couple sued in a Utah federal court after KlearGear told the Palmers that they had to pay $3,500 or remove the post. When they did neither, KlearGear attempted to get the money via a collection service, which allegedly damaged the Palmers' credit.

When KlearGear did not show up in court or respond to the lawsuit in any way, the Palmers won by default.

Specifically, Vic Mathieu, the director of corporate communications for Descoteaux Boutiques (DBS), KlearGear’s Paris-based parent company, now claims that its one-time customer was “belligerent toward our customer care staff and threatened to defame KlearGear if he did not receive free merchandise and other consideration.”

“Such a customer behavior is rare, but it has become an increasing problem for many companies today,” he continued. “DBS' head of retail for North America, Lee Gersten, spends nearly half of every year in the United States and Canada and cites this problem as one of the reasons that we started to eliminate Kleargear.com's social media channels in 2012.”

“Not likely to be very effective”

Mathieu also labeled Palmer attorney Scott Michaelman’s “argument and actions” as being “irresponsible and uninformed.”

Further Reading

Never-delivered $20 purchase begat a bad review, which led to litigation.

Neither KlearGear nor Descoteaux Boutiques responded to repeated requests for comment via phone and e-mail. A call to the Paris number listed on the e-mail for Descoteaux Boutiques resulted in an automated message in Canadian-accented French and then English saying to call back during European business hours, which Ars did more than once.

Michaelman, an attorney with Public Citizen, told Ars that the company’s new statement had zero merit and that there was no reason to believe that their accusations against him or his client were true.

“It seems to be mainly an exercise in name calling and attempting to litigate the case in the press—if the company has arguments to make to the court, they should make them to the court,” he said.

“Right now, before we even get to the merits of whether the contract is unconscionable or anything else, the court issued a default judgment because KlearGear failed to defend after having been properly served. We're happy to have this debate if there is a reason to vacate the judgment. For them to throw around snippets of legal arguments and call me names is not likely to be very effective.”

Passing the collection plate

The entire tale revolves around a tiny order.

Back in December 2008, John Palmer made an order of two items, worth less than $20, as a gift for his wife, Jennifer. Those items never arrived. After repeatedly attempting to contact the company by phone and e-mail, the couple reached a customer representative, who claimed that the items had never been paid for and had been cancelled.

Over three years later, her husband John Palmer received an e-mail demanding that the review be deleted within 72 hours or that he pay $3,500, as he was in violation of the company’s “non-disparagement clause” of its terms of service. However, such a term did not appear in the Terms of Sale and Use that the Palmers had agreed to when they placed their order in 2008.

When the Palmers refused to pay or take down the review, KlearGear sent a collection agency to them for this money, which damaged their credit by August 2012. By December 2013, the Palmers filed suit in federal court in Utah, asking the judge to issue a declaratory judgment in their favor, saying that the Palmers’ “debt” was “null and void.” The couple also wanted the judge to rule that John Palmer had not agreed to this “non-disparagement clause,” which is in violation of the First Amendment of the Constitution. The judge issued that ruling earlier this month.

Michaelman said that this case is unique in his career.

"I think this is probably the first time I have gone up against a defendant that seems to want to make all of its legal arguments to the press and not to the court and litigate by ad hominem attacks rather than by legal arguments,” he said.

Michaelman added that once the Utah federal judge issues a damages award next month, “we will attempt to collect using all lawful means to determine where [KlearGear’s] assets are and what judgments we can get against them.”